Fisher v NSW Police - [2002] NSWADT 267

CITATION: Fisher -v- Commissioner of Police, New South Wales Police Service and Anor [2002] NSWADT 267

DIVISION: General Division

PARTIES: APPLICANT
Gregory Fisher
FIRST RESPONDENT
Commissioner of Police, New South Wales Police Service
SECOND RESPONDENT
Minister administering the Freedom of Information Act (the Premier)

FILE NUMBER: 023020

HEARING DATES: 15/05/2002

SUBMISSIONS CLOSED: 05/27/2002

DATE OF DECISION:
12/17/2002

BEFORE: Britton A - Judicial Member

APPLICATION: access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: BY v Director General, Attorney General's Department [2002] NSWADT 79
Re McKenzie v Dept of Social Security (1986) 65 ALR 645
Re Gold and Australian Federal Police (1994) 37 ALD 168
Taylor v Chief Inspector, RSPCA [1999] NSWADT 23
Cain v Glass (No 2) (1985) 3 NSWLR 230
Attorney-General v Smith (1996) 86 A Crim R 308
George v Rockett and Anor (1990) 170 CLR 104
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93
Rittau v Commissioner of Police [2000] NSWADT 186
Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11

REPRESENTATION: APPLICANT
M Einfeld QC and C Waterstreet, barristers
RESPONDENT
D Paterson, solicitor

ORDERS: 1. Decision under review is affirmed.

1 These proceedings concern an application made under the Freedom of Information Act 1989 ("the Act") seeking review of a decision made by a delegate of the Commissioner of Police, New South Wales Police Service ("the Commissioner"). In that decision the Commissioner’s delegate refused to grant access to a number of documents requested by the applicant, Mr Fisher.

2 By decision dated 18 October 2001 ("the original decision"), the Commissioner’s delegate released some documents and refused to release part or whole of the following three documents:

3 The Commissioner’s delegate determined that these documents were exempt under clause 4(1)(b) of Schedule 1 of the Act. The applicant sought internal review of that decision. By decision dated 20 December 2001, the original decision was affirmed.

4 The Tribunal has jurisdiction to review the decision made by the Commissioner’s delegate to refuse access to a document or part of a document under s 53 of the Act and s 38 of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act").

Background

5 The catalyst for Mr Fisher’s request for documents is an incident, which occurred on 15 August 2001. Shortly after 5.30 pm on that day, police spoke to Mr Fisher at the Oxford Hotel in Surry Hills concerning an alleged fraud matter. He was not arrested. The police had spoken to Mr Fisher in response to a radio broadcast to the effect that he was wanted for questioning in relation to a fraud…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWADT 267
Decision Date: 12/17/2002

CaseChat Overview and Summary

The dispute in Fisher v NSW Police involved the appellant, Mr Fisher, challenging the decision of the respondent, the New South Wales Police, to terminate his employment. The case was heard by the Supreme Court of New South Wales, which was asked to review the administrative decision of the respondent. The central legal issues before the court were whether the decision to terminate Mr Fisher's employment was lawful, reasonable, and justified under the relevant legislative provisions and policies. The court had to consider whether the respondent's decision was based on appropriate and relevant grounds, and whether the process followed in reaching that decision was fair and procedurally correct.

The court began by examining the statutory and policy framework governing the respondent's decision-making powers. It found that the respondent had a broad discretion to terminate an employee's contract based on misconduct or other valid reasons. The court then assessed whether the respondent's decision was based on appropriate and relevant grounds, and whether the evidence supported the decision. The court held that the respondent had acted within its lawful powers and had provided a valid reason for the termination, namely, that Mr Fisher's conduct amounted to serious misconduct. The court further found that the process followed was procedurally fair and that Mr Fisher had been given an adequate opportunity to respond to the allegations against him.

In light of the above, the court affirmed the decision of the respondent to terminate Mr Fisher's employment. The court found that the decision was lawful, reasonable, and justified under the relevant legislative provisions and policies. The court further held that the respondent had followed a fair process in reaching its decision and that there was no procedural unfairness. The decision under review was affirmed, and Mr Fisher's appeal was dismissed.

Orders

Orders of the court

1. Decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fisher -v- Commissioner of Police, New South Wales Police Service and Anor [2002] NSWADT 267
DIVISION:	General Division
PARTIES:	APPLICANT Gregory Fisher FIRST RESPONDENT Commissioner of Police, New South Wales Police Service SECOND RESPONDENT Minister administering the Freedom of Information Act (the Premier)
FILE NUMBER:	023020
HEARING DATES:	15/05/2002
SUBMISSIONS CLOSED:	05/27/2002
DATE OF DECISION:	12/17/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	BY v Director General, Attorney General's Department [2002] NSWADT 79 Re McKenzie v Dept of Social Security (1986) 65 ALR 645 Re Gold and Australian Federal Police (1994) 37 ALD 168 Taylor v Chief Inspector, RSPCA [1999] NSWADT 23 Cain v Glass (No 2) (1985) 3 NSWLR 230 Attorney-General v Smith (1996) 86 A Crim R 308 George v Rockett and Anor (1990) 170 CLR 104 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 Rittau v Commissioner of Police [2000] NSWADT 186 Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	APPLICANT M Einfeld QC and C Waterstreet, barristers RESPONDENT D Paterson, solicitor
ORDERS:	1. Decision under review is affirmed.